A Crown attorney told Nova Scotia's highest court Wednesday that the judge behind the controversial decision to acquit a Halifax taxi driver of sexual assault had failed to "grasp" the evidence presented at trial.

In March, Judge Gregory Lenehan found Bassam Al-Rawi not guilty of sexually assaulting an intoxicated female passenger in his taxi. The ruling drew national attention when Lenehan declared in his oral decision that "clearly a drunk can consent."

The Crown is appealing the acquittal. Crown attorney Jennifer MacLellan told the three-member Nova Scotia Court of Appeal panel that the appeal is not based solely on Lenehan's comments.

MacLellan argued the Crown presented ample circumstantial evidence that the complainant was unable to consent to sexual activity. MacLellan recapped some of the evidence presented in the trial, including that the complainant only knew Al-Rawi for 11 minutes the night of the alleged assault.

The woman was found unconscious and soaked in urine in the back seat of the taxi. Her pants and underwear were down.

Justice Cindy Bourgeois challenged MacLellan during her submissions, saying the fact that the complainant was able to recall her address in the taxi — and remember to withdraw $20 for taxi fare — may speak to her capacity to offer consent.

Justice Jamie Saunders challenged MacLellan by recalling that the complainant had suggested going to another bar after leaving Boomer's Lounge.

The Court of Appeal has granted intervenor status to the Halifax-based Avalon Sexual Assault Centre and the Women's Legal Education and Action Fund.

Driver not in court

Al-Rawi was not in court Wednesday. He's represented by lawyer Luke Craggs, who argued Lenehan made no error in acquitting his client.

Lenehan had no choice but to acquit, Craggs said, because the Crown failed to produce evidence that the complainant either gave no consent or was beyond the capacity to give consent.

Bourgeois challenged Craggs and asked him whether the fact that the woman urinated her pants and had lost control of bodily functions prior to any contact with Al-Rawi might speak to her capacity to give consent.

Craggs suggested that since the complainant was able to give consent to an intrusive, head-to-toe examination at the hospital, it was conceivable she was able to consent to sex earlier in the taxi.

Craggs also highlighted some text messages the complainant sent to her friends moments before getting in the taxi. "She was able to reply with mostly accurate grammar," he told the court.

Craggs also told court there may have been anti-Muslim sentiment surrounding this case — and that might be behind the widespread public backlash against Al-Rawi's acquittal.

The three judges hearing the appeal now have six months to render a decision. They can either reaffirm the acquittal or order a new trial.